Siegelman Ruling Raises Confidence in Government Questions
March 12th, 2009 |
| Glynn Wilson |
| Former Alabama Gov. Don Siegelman in Atlanta for his appeal hearing Dec. 9, 2008 |
by Glynn Wilson
The ancient, conservative judges on the decidedly Southern Eleventh Circuit Court of Appeals in Atlanta surprised me with their ruling in the political prosecution of former Alabama Governor Don Siegelman last Friday, while we were setting up camp totally off the grid in the Great Smoky Mountains.
So it has taken me several days of catching up on other work and some rest after 12 days on the road to get around to reading and evaluating their 68 page screed, which basically upholds all but two of the guilty verdict counts against Sieglmen and HealthSouth founder Richard Scrushy issued by Chief U.S. District Judge Mark E. Fuller in Montgomery.
I must say for all the balderdash in the ruling about Siegelman’s actions on some motorcycle cover-up conspiracy theory undermining confidence in government, certainly by any objective standard a minor distraction not worthy of the tax dollars and the federal court’s time in this case, I came away with less confidence in the one branch of government I have come to trust the most over the years: The federal courts.
Growing up in the South in a state where Governor George Corley Wallace ruled with an almost totalitarian fist for most of my childhood and early adult life, my confidence in state government has never been great. Nor did Republicans Guy Hunt or Fob James inspire much confidence in my home state government either, and forget the Alabama legislature. Goat Hill has been a joke my entire life.
But who can forget the heroic decisions by U.S. District Judge Frank M. Johnson, who issued a number of landmark civil rights rulings that helped end segregation and racial discrimination in the South? As Bill Moyers is often quoted saying about him, Johnson “altered forever the face of the South.”
Johnson and a few other judges and attorneys, and a newspaper editor or two, did much to save any hope I had for government, and that would be true for any educated native of Alabama who wants to cling to at least a thread of hope in government on the biggest social issues of the day. If the judges are trying to talk about their conservative brethren, the Rush Limbaugh fan government haters around here, confidence in government is sort of the opposite of the point, right?
After growing up in an era when Richard Nixon’s resignation after Watergate certainly undermined any confidence we ever had in the executive branch of the federal government, it looks like some of kind of Rush Limbaugh political spin, not sound jurisprudence, for these three judge to spend so much time writing about how Don Siegelman undermined public confidence in government.
If he committed any real crimes at all, and we are still not convinced and will anxiously await the U.S. Supreme Court’s decision in the case, they were certainly trivial compared to the high crimes and misdemeanors of the Bush administration against this country, the world, and the earth itself over the past eight years.
Yet the architect of many of those crimes, Bush political adviser Karl Rove, still walks free and even somehow gets his corrupt views published as credible by Robert Murdock’s Wall Street Journal and the Graham family’s Newsweek magazine, all while he defies a Congressional subpoena.
Rove’s pasty white talking head is not unexpected on Fox News, where the news ratings game played every day is just a broadcast homage to American patriotic nationalism using pro-Republican political spin. They push a life based on “faith” not only in religion, but on myths about America’s supremacy on the planet and the GOP’s “obvious” capitalistic competence, despite the mountain of evidence of incompetence and worse to the contrary during the Bush years by the Republicans in charge for eight years.
So let’s evaluate the Eleventh Circuit Court ruling on the standard of confidence in government, in this case whether there is any reason to believe this ruling was conducted without partisan bias.
All three of the judges were appointed by Republican presidents. Chief Judge J.L. Edmondson, appointed by former President Ronald Reagan, asked the most questions about the quid pro quo issue in the hearing we reported Dec. 9, and Senior Judge James C. Hill and Judge Gerald Bard Tjoflat, both appointed by former president Gerald Ford, asked more about juror misconduct.
For background on Siegelman’s grounds for appeal, this is perhaps the best advance written on it anywhere.
For starters, the ruling is issued pur curiam, meaning the panel of judges declined to attach their names to the writing of the decision. That’s the first strike against our confidence.
Then, in their discussion of the quid pro quo issue, where Siegelman ostensibly appointed Scrushy to the health board in exchange for two $250,000 contributions to the education lottery campaign, the judges upheld the jury’s verdict and found “no reversible error” in the way jury instructions were handled.
The ruling shows a complete confidence in the jury in this case, ignoring the fact that it was hopelessly deadlocked until judge Fuller issue his dynamite charge and bragged about his “lifetime appointment,” and ignoring the serious allegations of juror misconduct raised in this case.
That’s strike two.
The judges declined to reverse the case on what clearly constitutes jury misconduct, we now know from all the e-mail messages that have surfaced. It is a clear violation of jury rules to read and discuss news coverage of a case during jury deliberations, and in this case, there is direct evidence that a couple of jurors used biased news coverage to badger other jurors to vote with them in the guilty verdict.
How the appeals court panel can ignore that and find no reversible error is beyond the pale.
The judges claim the district court in Montgomery “carefully” investigated this, a joke not worthy of a federal court intent in inspiring confidence in its impartiality. The judges call the media exposure, which they admit took place in spite of the district court’s denial, “harmless and incidental.” They find “no constitutional violation?”
Strike three.
The also deny that Siegelman’s attorneys raised the statute of limitations issue at trial, even though there was evidence they tried to but Fuller would not allow it. They totally dismiss Scrushy’s claim of a conflict of interest on the part of judge Fuller, contrary to overwhelming evidence of such a conflict, saying the claim came too late and had “no merit.”
Their ruling does vacate Siegelman’s seven-year sentence and remands the case back to Fuller for re-sentencing, based on the reversal of the jury verdict on two counts of “honest services mail fraud.” That re-sentencing hearing should be interesting to watch.
Siegelman’s legal team must now decide whether to ask for a full re-hearing on the part of the Eleventh Circuit, or appeal directly to the United States Supreme Court.
Vince Kilborn, Siegelman’s attorney who has made all the public comments on Siegelman’s case, could not be reached for comment Thursday. He was out of town. We’ve also asked for more reaction from Scott Horton of Harper‘s magazine, Siegelman, key source Jill Simpson and a few others. Those comments will be added as they come in…
“I have been working hard since the 11th CCA ruling with my lawyers,” Siegelman said. “We will appeal to the entire 11th circuit and then to the U.S. Supreme Court.”
“If this ruling stands every elected official who does anything for a contributor is up the creek without a paddle,” he said. “Its a rogue prosecutor’s Christmas present. They will be able to convict Members of Congress it they so much as vote in favor of legislation supported by one of their contributors. Both the elected official and the contributor can be prosecuted for bribery and extortion. So can presidents who appoint contributors as ambassadors!”
Congress may have to rewrite the Hobbs Act and the Honest Services
statute to get this right, he said.
“Meanwhile President Obama and (Attorney General) Eric Holder have left the Republican/Bush/Rove appointed US Attorneys in power so they can continue their dirty work,” he said. “It’s one thing to have to fight for justice against Bush and Rove and Gonzales, but why should we still be fighting now that President Obama and Eric Holder are in control? It makes no sense to me why they haven’t removed the Rove/ Bush US Attorneys.”
Priscilla Duncan, Ms. Simpson’s attorney, said the first pages are “too weird with the medieval imagery.”
“And what’s all that sanctity of the jury?” she asked. “They wouldn’t have a job as appeals court judges if jury verdicts couldn’t be called into question.”
They certainly didn’t hear the hearsay argument much, she said, because such as it was, “Nick Bailey’s connection between Scrushy, Siegelman and the CON job is very weak.”
She said she Just found out that Edmondson is the judge who bailed out Fuller when he was accused of perjuring himself on the RSA/salary spiking case in his DA’s office.
“Fuller’s own letter saying the spike covered a four-year period was conflicted by his later swearing that it reflected only one year’s work,” she said. “Edmondson said, well he wasn’t under oath. (But he was an officer of the court, for God’s sake, he doesn’t have to be under oath!)”
Nor does the ruling deal at all with the fact that Scrushy had the job under three previous administrations, she said. “The CON decisions cited weren’t significant enough to equate to $500,000.”
Furthermore, “Why should this shock the public trust?” she asked. “None of this was public money?”
Meanwhile, this just in from the Washington Post.
One of the better spoils of winning the presidency is the power to appoint nearly 100 top prosecutors across the country. But filling the plum jobs has become a test of competing priorities for President Obama. While he pledged bipartisanship during his campaign, replacing the cadre of mostly conservative U.S. attorneys would signal a new direction.
How Obama Will Handle US Attorney Posts Still Unclear
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Tags: Eleventh Circuit Court of Appeals, Judge Frank M. Johnson, Judge Mark E. Fuller, Karl Rove
March 13th, 2009 at 1:51 pm
As I noted in a previous post, this ruling struck me as incomprehensible, given the facts of the case against Siegelman. There was little, if anything, other than hearsay, to base the conviction on. While juries may indeed to choose to believe what they wish, judges have a duty to follow behind them and make sure the full protection of the law is given the accused.
When that is not done, we have a situation in which prosecutions become purely political, as they certainly did under Bush-Gonzales, and people end up in jail simply because they were on the wrong side of the political aisle.
That’s what the difference between America and many other nations is supposed to be: fair and impartial, transparent justice based on a never-compromised rule of law.